Circuit Court Ruling Favors MDE & Baltimore County in MS4 Permit Litigation

As previously reported on Conduit Street, a coalition of environmental groups have legally challenged the Phase I Municipal Separate Storm Sewer System (MS4) permits issued to several counties by the Maryland Department of the Environment (MDE).  The targeted jurisdictions include Anne Arundel, Baltimore, Montgomery, and Prince George’s Counties and Baltimore City.  On October 3, Judge Patrick Stringer of Maryland’s 3rd Circuit Court considered the legal challenge to Baltimore County’s permit and ruled in favor of MDE and the County.

Judge Stringer held an unusual 4 hours of oral arguments on September 30.  He then issued an oral decision from the bench on October 3.  The Judge’s oral opinion was comprehensive and took approximately 30 minutes to issue.  On all counts he found for MDE and Baltimore County, holding that:  (1) neither the federal Clean Water Act or Maryland law requires strict compliance with the Act’s water quality standards (essentially preserving the long existing standard of “maximum extent practicable”); and (2) the MS4 permit does not require compliance with the water quality standards.

The Judge also addressed three issues raised by the environmental petitioners. He found:  (1) that the Restoration Plans required under the permit did set actual effluent limits, but are merely implementation plans documenting how Baltimore County will comply with the permit’s requirements; (2) the monitoring requirements contained in the County’s issued permit were sufficient; and (3) as there were no current violation of any permit requirements, there was no need for a compliance schedule.

Judge Stringer subsequently issued a written order affirming MDE’s issuance of the Baltimore County permit on October 7.  However, it is very likely that the environmental litigants will appeal the holding.